Citation Nr: 18157940 Decision Date: 12/14/18 Archive Date: 12/13/18 DOCKET NO. 08-35 013 DATE: December 14, 2018 ORDER Entitlement to an evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD) from June 24, 2010 to June 4, 2018 is denied. Entitlement to a rating of 70 percent, but not higher, from June 4, 2018, is granted. FINDINGS OF FACT 1. From June 24, 2010 to June 4, 2018, Veteran’s PTSD has not been productive of occupational and social impairment with deficiencies in most areas. 2. From June 4, 2018, the Veteran’s PTSD symptomatology results in occupational and social impairment with deficiencies in most areas. CONCLUSIONS OF LAW 1. From June 24, 2010 to June 4, 2018, the criteria for a disability rating in excess of 50 percent for the service-connected PTSD are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2018). 2. From June 4, 2018, the criteria for a rating of 70 percent, but not higher, for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from January 1968 to August 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of an April 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). It was previously before the Board in August 2014 at which time the Board granted entitlement to a 50 percent disability rating from May 2, 2007 through June 23, 2010, and, remanded the issue of entitlement to an evaluation in excess of 50 percent for PTSD from June 24, 2010. This issue has now been returned to the Board for further appellate action. The Veteran and his spouse testified at a hearing before the Veterans Law Judge in June 2014. A transcript of that hearing has been associated with the claims file. Entitlement to an increased rating for PTSD from June 24, 2010 As noted above, the issue before the Board is whether a rating in excess of 50 percent is warranted for the Veteran’s PTSD from June 24, 2010. The Veteran’s PTSD is rated under the General Rating Formula for Mental Disorders, 38 C.F.R. §4.130, Diagnostic Code 9411. In relevant part, the rating criteria are as follows: A 50 percent evaluation is warranted when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent evaluation is warranted where there is objective evidence demonstrating occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to suicidal ideation; obsessional rituals which interfere with routine activities, speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, or effectively; impaired impulse control, such as unprovoked irritability with periods of violence; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances, including work or a work-like setting; and the inability to establish and maintain effective relationships. A 100 percent evaluation is for application when there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. Id. The veteran contends that a rating in excess of 50 percent is warranted for the period remaining on appeal. At the hearing in June 2014, the Veteran reported severe sleep impairment, manifested by repeated violent nightmares and night sweats which resulted in frequent awakenings. He reported this on-going sleep impairment even in conjunction with increased medication usage. He described an inability to cope with crowds and violent outbursts which he directed towards physical objects. His wife reported having to remind him to take care of personal hygiene, such as shaving and grooming. Upon review of the record, the Board finds that a rating in excess of 50 percent is not warranted for the period from June 24, 2010 to June 4, 2018. In this regard, the Board finds that the Veteran's psychiatric symptoms were not productive of occupational and social impairment with deficiencies in most areas, or total occupational and social impairment. In Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013), the Federal Circuit stated that "a veteran may only qualify for a given disability rating under 38 C.F.R. § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." It was further noted that "§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas." Id. at 118. During the period from June 2010 to June 4, 2018, the examination and treatment reports reflect primary complaints involving nightmares and dreams, but do not support a finding that his symptomatology resulted in deficiencies in most areas. During the 2010 examination, the Veteran’s speech content was relevant and coherent, and mood and affect appeared within normal limits. He presented as polite and cooperative. He reported engaging in some hobbies, including working out in his shed building bird houses and gardening. He reported going out to dinner and shopping with his wife. The May 2012 VA examiner indicated that the Veteran did not have impairment in judgement, thinking, or speech, although memory problems were noted. The examiner found the Veteran’s PTSD symptomatology resulted in occupational and social impairment with reduced reliability and productivity. The Veteran reported that he had a good relationship with his two children and that he speaks to them at least once a week. At visits with the VA treatment providers during the relevant period, the Veteran was noted to have memory problems, which improved with a change in medication. These records noted the on-going nightmares, violent dreams, anxiety and flashbacks at night resulting in significant sleep impairment. However, the records do not reflect occupational and social impairment with deficiencies in most areas. In this regard, the records reflect the Veteran had intact insight and judgment, normal speech, and adequate grooming. See e.g. October 13, 2011, November 14, 2013, August 14, 2014, March 20, 2015 VA treatment records. The treatment records also reflect that the Veteran attends church, has gone to church functions and volunteered to clean the church, goes shopping with his wife, and engages with grandchildren. See e.g., October 13, 2011, June 10, 2016, June 28, 2017 VA treatment records. In summary, while impairment consistent with a 50 percent rating has been shown during the period in question, occupational and social impairment with deficiencies in most areas has not been shown during the period from June 24, 2010 to June 4, 2018. However, after resolving all doubt in the Veteran’s favor, the Board finds that a rating of 70 percent is warranted from June 4, 2018. In this regard, the Veteran underwent a VA examination on June 4, 2018 at which time the examiner indicated that the Veteran’s PTSD symptoms result in occupational and social impairment with deficiencies in most areas. Accordingly, a 70 percent rating is warranted from the date of the examination. A rating in excess of 70 percent is not warranted from June 4, 2018, as the evidence does not reflect that the Veteran’s PTSD symptomatology results in total occupational and social impairment. In this regard, the Veteran was noted to have adequate grooming and hygiene, and was cooperative but mildly agitated during the examination. The Veteran reported that he goes to church but does not socialize when there. It was noted that his speech was clear and coherent. As noted above, the examiner concluded that the Veteran’s symptoms resulted in occupational and social impairment with deficiencies in most areas, but did not result in total occupational and social impairment. Accordingly, a higher rating is not warranted. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Rachel Mamis